FISA Bites Back

I was shocked, shocked!

Saturday morning I awoke to a tweet by my President, Donald J. Trump, charging that the Obama Administration (well he said Obama, but okay) had conducted electronic surveillance of a campaign-related server in Trump Tower. For those not paying attention, the tweets were, “Terrible! Just found out that Obama had my “wires tapped” in Trump Tower just before the victory. Nothing found. This is McCarthyism!” and “Is it legal for a sitting President to be ‘wire tapping’ a race for president prior to an election? Turned down by court earlier. A NEW LOW!” and, “How low has President Obama gone to tapp my phones during the very sacred election process. This is Nixon/Watergate. Bad (or sick) guy!”

I have to admit that at first I thought that this must be a hack. I could not believe that the President would tweet such a thing, and thought it must be someone else.

Alas, I was wrong. It was President Trump. Now the country is aflame on these questions: did the Obama Administration spy on the Trump campaign, and was that legal?

After a lot of denying, parsing, excusing, and debating, it appears that well, maybe, just maybe, there was electronic surveillance of the Trump campaign by the United States Federal Government. It appears further that, if there was surveillance (and we don’t quite know that), it was probably approved by a Foreign Intelligence Surveillance Act (FISA) court in October of 2016 (and we don’t quite know that either), just a month before the General Election, and thus legal. As best I can tell from the news reports claiming these warrants were issued, the surveillance was requested first in June 2016 (keep that date in your mind), denied, and then requested again, and approved, in October 2016.

We should be clear on this. While the President referred to Watergate, this is not that. As far as we know, if the surveillance did occur, it was likely approved by a duly empowered court in response to a legal request made by the administration in furtherance of an investigation. As bad as it is, if this occurred, this was not an illegal wiretap.

And therein lies the problem.

From Wikipedia: “The Foreign Intelligence Surveillance Act of 1978 (‘FISA’ Pub.L. 95–511, 92 Stat. 1783, 50 U.S.C. ch. 36) is a United States federal law which prescribes procedures for the physical and electronic surveillance and collection of ‘foreign intelligence information’ between ‘foreign powers’ and ‘agents of foreign powers’ (which may include American citizens and permanent residents suspected of espionage or terrorism).” FISA set up the Foreign Intelligence Surveillance Court (FISC) which meets in secret to determine if surveillance can be authorized.

The act was in response to allegations of improper use of federal surveillance capabilities against political opponents by the Nixon Administration, which were detailed in the Church and Rockefeller Commission reports following Watergate. The intent was to provide oversight by the courts, and Congress, to prevent future political misuse of these capabilities and to give that oversight some teeth. The act has been amended many times to keep up with advances in technology, address the “non-state actor” role in terrorism, and to clarify the rules related to warrant less and warrant searches, physical searches and many other provisions. Throughout the years this has all been done to improve the government’s capability, and reportedly these operations have thwarted many terrorist plots and may have saved many lives. FISA has been roundly criticized, however, by the left and right as a secret way for the government to spy on us all, based, potentially, on unclear links to terrorism or espionage.

FISA’s problem is that once the government has the legal right to secretly listen to the conversations, look at the emails, and “sneak-and-peak” at the computers and files of U.S. citizens, there is the potential of impropriety, or at least the appearance of such, and this impropriety will diminish the trust that Americans have in their government. There is no nice way to say it: we are trading liberty for security with FISA. The act may have been necessary and effective, but its propriety is questionable and the impact on our privacy significant. I do not doubt the FISC’s desire to do right. I doubt that they are going to always be able to do so, especially in our highly-charged political environment.

When Nixon tapped a political opponent’s phone, it was (probably) illegal. If the Obama Administration tapped into Trump’s server, as some allege, it was (probably) legal.

In 2013, Jennifer Granick and Christopher Sprigman wrote a scathing editorial on FISA, “The Secret FISA Court Must Go” (Daily Beast, July 24, 2013), arguing against the secret court. Their article is very informative and worth a read, and addresses mainly the functioning of the court and its relation to, at that time, newly discovered mass surveillance by the NSA. Their warning, however, was more general, and seems prescient. “Given what we know now, there is zero chance that the FISC — or any secret court — can save the United States from government excess and overreaching in the name of national security.”

Obama supporters are clinging to two points in this latest controversy (in addition to outright denial). First, that then-President Obama did not approve the wiretaps himself. The second is that the wiretaps, if they did occur, were based on probable cause and must have been approved by the FISC (though they claim that didn’t happen).

On the first point, let’s be clear. True, the President cannot approve the surveillance, only the FISC can, or it can be approved due to a criminal investigation by a judge. That said, the President must “authorize” requests for warrantless surveillance, and all requests for FISA warrants must have the “approval of the Attorney General of the United States.” That Attorney General was close Obama ally Loretta Lynch. It begs credulity that the President was unaware of any FISA-approved surveillance of then-candidate Donald Trump, which required authorization by Lynch.

In regards to point two, they are right. If they got approval from the FISC, the Justice Department would have had to offer probable cause. But how strong was that probable cause case? Who concocted it? Was it reliable? The court is a secret proceeding and we shall, perhaps, never know. Sans the felonious leaks, we would not even be talking about this. As Angelo M. Codevilla, Professor emeritus of international relations at Boston University, who served on the Senate staff dealing with intelligence oversight, wrote in 2013, “Although strictly speaking the [FISA] court could confer only a procedural imprimatur, in practice that would shield the bureaucracies – and the President – from having to defend the substantive value of any act of surveillance.”

The charge of collusion with the Russians to influence the election was clearly a political issue, and so far there has been no evidence presented, even to members of the relevant congressional committees, that said collusion occurred (Senator Chris Coons, member of the Senate Foreign Relations Committee, on Sunday, March 5th, said, “I have no hard evidence of collusion.” Director of Central Intelligence, James Clapper, said basically the same thing.). Mere communication is not collusion. It is not illegal to talk to Russians. Americans were very much aware of the collusion charge and apparently tens of millions did not believe it, or so the results of the election would tell us. Legally speaking, however, it was totally acceptable for the leader of one political party to ask for, and receive, permission to secretly listen in to communications of the opposing party during a hotly contested campaign, based on potentially politically-motivated allegations of foreign involvement. And that is just not right.

We may never know what the Obama Administration found out regarding the Trump campaign through this alleged (and legal) surveillance, again, if it happened. We may never know who in the Obama Administration, or the Democratic National Committee or the Clinton campaign, was given access to this information. Did Loretta Lynch, who would have to approve the FISA request, tip off Bill Clinton that such a request was coming during their chat on the tarmac in Phoenix in June 2016 (remember that date)? Did that inform the Clinton campaign’s line of attack against Trump as a Putin stooge?

Hillary Clinton did tweet in October that “computer scientists have uncovered a covert server linking the Trump organization to a Russian-based server.” How did she know that? Was that information from “independent investigators” as her campaign claimed, or did it start with Lynch? Did the “independent investigators” know to look because they were tipped off by Lynch? Or did Lynch know to authorize the surveillance because she was tipped off by Clinton? The charge of collusion definitely impacted the election, even if Trump won. It is clear that, post-election, the Trump Administration has been hampered by leaks that appear to be tied to this investigation, a fact that serves the Democratic Party’s cause. Secret surveillance, in this case, has had the predictable, and lamentable, effect of influencing our electoral process and undermining the people’s faith in our government.

The great fear about secret electronic surveillance is that it will eventually be abused for political purposes and used to target political opponents. There is no doubt that such surveillance is central to our fight against terrorism and as a means of thwarting foreign intelligence operations. For lots of good reasons FISA attempted to codify such surveillance in law in order to enable us to conduct it with oversight. The current controversy has, however, revealed that it is probably legal for the President of one party to surveil the candidate from another, if he can (through the Justice Department) show, in secret proceedings, probable cause. FISA, in this light, opens up a huge can of worms. Unfortunately, it may be that FISA made our worst fears legal. Maybe that was unavoidable given the world we live in, but it certainly is a shame.

  • mark Jawsz

    Superb job as always, Jay.

    • Jay McConville

      Thanks Mark – given our shared back fry this is a tough one

      • Jay McConville

        “background” it should have said…damn autocorrect!

  • MD Russ

    Do you have a single shred of evidence that any of this actually happened or is this just more “Fake News” from the Trumpsters, Jay? If an FISC warrant was issued, then the Justice Department would have a paper trail. The President could produce that paper trail if it existed.

    What utter nonsense.

    • Turtles Run

      I would think this would be a slam dunk for Trump and the Trumpanzees. Trump says he has the evidence so release it to the “legitimate” media like InfoWars, present it to the DOJ, and give it to Congress.

      Maybe Trump is planning to release the evidence at the same time he presents his birther proof and the videos of those thousands of Muslims on rooftops cheering 9/11.

      Matt Suarez

    • Jay McConville

      As I clearly say in the post, we don’t know. But the topic, which you apparently missed, was that the flap highlights the problem of FISA – whether it’s true or not.

      • MD Russ

        There is no problem with FISA. Either Trump was falsely accused in FISC of having illegal foreign intelligence connections or he is lying about there being an Obama FISC warrant to wire tap Trump Tower. If he was falsely accused in FISC, as the POTUS he can produce those records. Which is it?

        • zke007

          You stupid or a nut.

          • MD Russ

            You need to learn to speak English. Try using a verb form, such as the verb “to be.”

        • Jay McConville

          Well, clearly we disagree. I think there is a problem with FISA. As for the record, as I said, we don’t know…so we have to wait and see.

      • old_redneck

        “As I clearly say in the post, we don’t know, however, the fact that we don’t have a clue will not deter us from several paragraphs of babble and speculation.”

        There. I fixed your comment for you. No charge.

        • Jay McConville

          The article is about FISA. That you cannot pick that up is no reason to call it babble.

    • Eric the half a troll

      Also, it is a serious thing for a government official to claim a citizen has committed a crime with no evidence. Ruling by innuendo – there are laws against that.

    • matrixman1013
      • Turtles Run

        Why thank you Matrixman. Based on your link it proves that Trump is full of shaite. Trump claimed his phone was tapped by Obama and your article reveals it was really a Trump server that was communicating with a Russian bank and it was the FBI not Obama that made the request as stated by Trump.

        I am sure that is what you wanted to communicate since you did not bother to leave any reply with your link.

        President Obama thanks you.

        Matt Suarez

        • matrixman1013

          Yes true. But indirectly his phone could have been wiretapped as he would be caught up surely in any investigation of a Trump server. Also indirectly Obama would have been aware of this. But his tweet left no room for misinterpretation as he incorrectly claimed Obama had done this directly which would be false. It was up to those in DOJ presenting the evidence to court to initiate this directly. Jay point in his article indicated what Trump is likely thinking is that DOJ was just doing his dirty work for him. Nevertheless their are still checks and balances to prevent this abuse and the court determined it must have been a high enough concern to issue the warrant. Keep in mind the first request was denied, thus seeming to me these checks and balances were working, but more hard evidence brought to light in Oct got the warrant granted. So I think Jay’s articles assumptions and where he is going is weak. But he has every right to ask these good questions.

          • Turtles Run

            A person has a right to ask any question they want. It does not mean there is any basis for that question. Trump said it was a fact the phones were tapped it is up to him to present it.

            Matt Suarez

  • James Young

    Good analysis.

    • MD Russ

      Good analysis is that which is based on facts. Trump is now the President of the United States. Where is the evidence that the Obama Administration obtained and executed a wire tap warrant? Why hasn’t Trump produced that evidence if it ever existed? Are you really so paranoid that you believe that hundreds, if not thousands, of Federal employees have been silenced? Or do you believe that the Federal government has the power to conduct illegal, warrantless wire taps and to keep it secret?

      I hope that you look under your bed every night before going to sleep.

      • Jay McConville

        My only comment would be, go back and read the post. You totally missed the point.

        • MD Russ

          No, you totally missed reality. Everyone else on the Internet is ridiculing the whole thing. Here is a for instance:

          • zke007

            The FBI just proved it. Sorry, Your a nut

          • Jay McConville

            The article is about FISA. It uses the current controversy to address that. The article stands whether there was a FISC warrant or not in this particular case…because, as I say, it would have been perfectly legal if there was one.

          • Turtles Run

            “Legal” if there was justification for the warrant. The FISC cannot issue warrants without probable cause and neither you or Trump have proved or even provided a shred of evidence that this has occurred.

            Trump is trying to gum up the Russian/Trump investigations by trying to get them to focus on a chupacabra hunt.

            Trump said it was a fact so let him present the evidence to authorities.

            Matt Suarez


  • Reid Nicholson

    Henceforth she should be referred to as Loretta Lynch V. or the fifth as she, while Atty. General, claimed her 5th amendment right to not incriminate herself before congress. Had she only done the honorable thing and recused herself…

    How big a stretch is it to assume the Obama Justice Dept would abuse their power in the same fashion as the Obama Treasury Dept. did with the IRS? Media outlets, adversarial to the Administration, claimed anonymous “wire-tapped” transcripts as evidence of the Trump campaign’s collusion with the Russians.

    The real shame here is that it took a Presidential Tweet to bring attention to the disgrace that is the Modern Media who should have taken it upon themselves to investigate this possible abuse of power.

  • matrixman1013

    Jay, good article. Some good questions, but I would also ask this of you. Would you not be concerned about a foreign governments involvement pre-campaign with someone who overtly puts Putin on a pedestal, has known business dealings with Russia, and won’t release his tax returns? If you look at all the folks Trump both pre-campaign and now in office surrounds himself with that have such major ties with Russia, then I think this is certainly a concern to any US citizen to ensure their leader would be acting on behalf of citizens and not for interests of a foreign government. Where there is smoke…

    But I do understand the concern for probable cause as there could just as well have been nothing nefarious in these communications with Russia. Then again there may be more damning evidence than we are aware of. However, Trump does indeed have business dealings with Russia and it would not be unlikely. Have you read this article link below as the data and correlation of it could be enough probable cause. Then again it may not. Not sure how and where FISC draws the line and I agree that can be a problem for the privacy of citizens. Certainly I think this warrants an investigation as well on the FISC ruling even if done privately by separate intelligence committee with clearance to ensure they are operating with respect to a citizens privacy in this case.

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